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CORPORATIONS ACT 2001 - SECT 1041H

Misleading or deceptive conduct (civil liability only)

             (1)  A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive.

Note 1:       Failure to comply with this subsection is not an offence.

Note 2:       Failure to comply with this subsection may lead to civil liability under section 1041I. For limits on, and relief from, liability under that section, see Division 4.

             (2)  The reference in subsection (1) to engaging in conduct in relation to a financial product includes (but is not limited to) any of the following:

                     (a)  dealing in a financial product;

                     (b)  without limiting paragraph (a):

                              (i)  issuing a financial product;

                             (ii)  publishing a notice in relation to a financial product;

                            (iii)  making, or making an evaluation of, an offer under a takeover bid or a recommendation relating to such an offer;

                            (iv)  applying to become a standard employer-sponsor (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of a superannuation entity (within the meaning of that Act);

                             (v)  permitting a person to become a standard employer-sponsor (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) of a superannuation entity (within the meaning of that Act);

                            (vi)  a trustee of a superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) dealing with a beneficiary of that entity as such a beneficiary;

                           (vii)  a trustee of a superannuation entity (within the meaning of the Superannuation Industry (Supervision) Act 1993 ) dealing with an employer-sponsor (within the meaning of that Act), or an associate (within the meaning of that Act) of an employer-sponsor, of that entity as such an employer-sponsor or associate;

                          (viii)  applying, on behalf of an employee (within the meaning of the Retirement Savings Accounts Act 1997 ), for the employee to become the holder of an RSA product;

                            (ix)  an RSA provider (within the meaning of the Retirement Savings Accounts Act 1997 ) dealing with an employer (within the meaning of that Act), or an associate (within the meaning of that Act) of an employer, who makes an application, on behalf of an employee (within the meaning of that Act) of the employer, for the employee to become the holder of an RSA product, as such an employer;

                             (x)  carrying on negotiations, or making arrangements, or doing any other act, preparatory to, or in any way related to, an activity covered by any of subparagraphs (i) to (ix).

             (3)  Conduct:

                     (a)  that contravenes:

                              (i)  section 670A (misleading or deceptive takeover document); or

                             (ii)  section 728 (misleading or deceptive fundraising document); or

                            (iii)  section 1021NA, 1021NB or 1021NC; or

                     (b)  in relation to a disclosure document or statement within the meaning of section 953A; or

                     (c)  in relation to a disclosure document or statement within the meaning of section 1022A;

does not contravene subsection (1). For this purpose, conduct contravenes the provision even if the conduct does not constitute an offence, or does not lead to any liability, because of the availability of a defence.



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